California’s Workplace Violence Prevention Law Turns Two, Part 5: Beyond Basic Compliance

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Karen Tynan: Hello, everyone, and thank you for joining us for the Ogletree Deakins podcast. My name is Karen Tynan, and I’m a shareholder in the Sacramento office. Here with me today is Robert Rodriguez, co-chair of our Ogletree Deakins Workplace Violence Prevention Practice Group and fellow Sacramento shareholder. We’re discussing how to operationalize a durable workplace violence prevention program that survives turnover, audits, enforcement, basically building a high-reliability workplace violence prevention program. Are you ready, Robert?

Robert Rodriguez: Absolutely, Karen.

Karen Tynan: Okay. We’ve talked about some of the details in compliance, but I think this podcast is important for some of the softer elements and maybe other techniques employers are using in compliance around workplace violence. So, borrowing from our previous workplace safety culture discussions and all these other podcasts we’ve done, Robert, tell me what leadership behaviors and, say, communications embed workplace violence prevention plans into daily work rather than just being, say, a binder on a shelf?

Robert Rodriguez: Yeah, and I think it’s good to start at the basic level. Obviously, we want to have a compliant workplace violence prevention plan to be in compliance with California law. We want to make sure that our population, employee population is safe. But I think something you touched on in another podcast that we did is there’s kind of a generational shift, and I think employees are now expecting employers to make them feel safe at work. And so, it’s important to have that for a happier, more secure employee, to have a more productive workforce. So, that’s the goal of any workplace violence prevention plan is to prevent workplace violence, but also make your employees feel secure if there is something, that issues are addressed. So, that starts obviously at the top. Leadership really has to be involved in it. There’s got to be participation, I recommend in training, transparency around the process of the workplace violence prevention plan, but making sure you’re having not only your mid-level managers, lower-level managers, but also your executive leaders, making sure that their employees know this is important within our culture and our organization.

Karen Tynan: For sure. The message has to come from the top, whether it is assigning resources that employees see allocated to workplace violence prevention. I do think it does start at the top and has to be consistent with the company culture in a way that messages every day to employees how important their safety and well-being is.

Robert Rodriguez: Right, exactly. And I think any kind of plan needs to have encouragement for reporting and feedback. One of my least favorite sayings in the workplace violence space is, “If you see something, say some…” And because it leaves me thinking, if I see what, who do I say it to? What is it–

Karen Tynan: What am I supposed to say?

Robert Rodriguez: Yeah, what am I seeing? And if I see it, who am I supposed to communicate it to? So, it leaves a lot of open areas. So, it’s really having a well-defined plan of this is what workplace violence is within the meaning of the regulation, but making sure your employees understand what the different levels of workplace violence are and how they can report that and who they can report that to, I think, is very important. Because I have seen situations where employees during investigations where I’ve interviewed employees and they said, “Well, I’ve seen workplace violence, but I’ve never reported it. I don’t really want to report it to my manager. I didn’t really know how that process worked.” So, making sure they understand how to do that.

Karen Tynan: I like that you pivoted away from that cliche of see something, say something. I see that in messaging and signage, and I think it’s too vague. And I like that you’re pointing out that communications around workplace violence prevention and workplace violence training and all that can be more effective and pinpointed in a way that is better for employees and encourages communication to and from employees.

Robert Rodriguez: Absolutely. And I think although not explicitly required by the regulation now, there’s talk about it in the draft regulation, but I think having any kind of employee assistance program or support services after an incident, obviously you’re not going to do it after every single incident. Maybe one employee makes a low-level verbal threat, you’re not going to have EAP for everybody, but having those services ready to go, not scrambling around to find EAP if there is an issue. I know I’ve gotten a lot of feedback from having respond to catastrophic incidents of fatalities or serious injuries where employees are saying, “I felt like the employer just really didn’t care what happened. There wasn’t any services offered.” So, making sure we have those ready to go in case of the worst happening.

Karen Tynan: Right. And I think those employees assistance programs, it can’t just be giving an employee a 1-800 number. That is an aspect of employee assistance, but sometimes we’ve even seen where you need therapists brought in and resources brought to a site. I think that is a good message from leadership and from a company that those resources are there. And we are going to make it easy for our employees to access those resources because the idea of, oh, there’s a sign on the bulletin board that has the 1-800 number for the employee assistance program that’s provided by a third party that we don’t really know anything about–

Robert Rodriguez: Next to the 500 labor posters that are required, right?

Karen Tynan: Right. Yeah. I think that the messaging around employee assistance programs and support services can be improved, can be consistent with company culture and can be integral to your workplace violence prevention program in a way that is very effective for the employees.

Robert Rodriguez: Yeah. And I think final thought on this particular issue is visibility into emergency preparedness. And again, you brought this up before that a large percentage of the workforce now grew up in an era after the Columbine shootings in 1996 where there’s been active shooter drills, there’s been evacuation drills at school. And so, I think this large percentage of the work population’s expecting that. So, having visibility into, okay, if we do have to evacuate, where are we going to go? If we do have to shelter in place, where’s the appropriate place to do that, and what are those procedures?

Karen Tynan: I think when we talk about emergency preparedness, not just once a year, but that it is very visible to employees. There are either drills, signages, all of the above. We’ve got a plan where with that plan very integrated into all aspects of safety, I think that’s a good message to employees. So, we’ve talked about this how to have your workplace violence prevention plan be more than a binder on the shelf and be part of your workplace. Let’s talk about workplace violence metrics really and not just like, oh, how many incidents did we have? How many irate customers at the store, whatever? But how could employers use any indicators to adjust training, staffing, or maybe even site-specific controls, engineering controls, administrative controls? Are there metrics or numbers, data that you think could be used?

Robert Rodriguez: Yeah, absolutely. I think what I’ve seen is the violent incident log, keeping track of what is happening at the individual work sites, what violent incidents we’ve had is a great way to track what’s going on at the local level. The key centerpiece of any workplace violence prevention plan, whether that be in California or any other state that you’re operating in, really is going to be tracking trends, not only in number of incidents and type of incidents, but also who the potential perpetrators are. For example, if you’ve got an employee that you’re having an issue with, what you want to be looking for is escalation. So, it may be a verbal threat one day, and then, maybe a physical knocking something off the desk in an aggressive manner.
So, you want to make sure you have those documented in a repository somewhere where in case the manager leaves, it’s not going with him. It’s somewhere where we can track this and make sure that behaviors aren’t escalating. Beyond that, I think it’s difficult because workplace violence incidents are so dynamic and often come without any warning. So, it can be a difficult metric to track, but if that’s something that is available to employers is the number of incidents and who’s involved in those incidents.

Karen Tynan: I agree. And I like to see employers who also keep a metric of the training completion. Are we getting our onboarding done, let’s say, within two weeks? Are we getting employees trained, and how quickly are we getting them trained? I think that’s a fair metric so that an employer can understand whether they’re training programs foundationally just as a threshold, is the training getting delivered? Are we 100% trained?

Robert Rodriguez: Great. Great point. And that goes back to what the first question we were talking about is, are we training our employees to know what workplace violence looks like, where they report it? And that’s a great metric because if we don’t track that, we don’t know, then likely, our employee population doesn’t know what to do and doesn’t know about the workplace violence prevention plan.

Karen Tynan: For sure. And I just wanted to say one final metric I was thinking about was surveys or feedback from employees. Depending on your company culture, and that’s my touchstone, because the company culture at a big electronics company is going to be different than an ag company that’s picking lettuce, right?

Robert Rodriguez: Right. 100%.

Karen Tynan: So, are you able to use surveys or feedback? What kind of feedback are you getting from your employees? Have you been able to survey folks? Is our training effective? Do people feel that you need to have fobs at the doors? Do we need more security? I like the idea of surveys and feedback with the caveat, what are you going to do with the survey? You can’t just do a survey to do it. You have to be willing to get information back that may be a little painful.

Robert Rodriguez: Yeah, absolutely. And may need addressing right away.

Karen Tynan: Right. So, we’ve talked about some metrics. What about documentation that works under scrutiny? What can be standardized? What can be localized? How are California companies maintaining accurate and accessible and sometimes, Robert, confidential records?

Robert Rodriguez: Yeah. And that’s a great question because there’s so many different types of documents and information that could result from a workplace violence plan and a workplace violence incident. And so, I think it’s important obviously to have a standardized workplace violence prevention plan in compliance with California law. We want to make sure that’s customized to each individual work site given that there is under the assumption that there may be differences between the different work sites. But I think also having documentation policies, how we’re going to handle these different types of records. For example, under the regulation, we’ve got to do an investigation. So, we’re going to have investigation documents, potentially witness statements, photographs, potentially root cause analysis. And then, we’re also going to have the violent incident log. So, making sure that we have policies for dealing with all of this information, how it’s going to be recorded, how it’s going to be protected potentially from confidentiality.

And I think this bleeds over also into an important issue with the attorney-client privilege. Now, these investigations into workplace violence incidents can be conducted under a privilege investigation when directed by an attorney that is going to be looking into facts around the workplace violence incident. However, obviously, you’re going to need to really be judicious about when we do this. Obviously, it’s not recommended for every small, low-level workplace violence incident, because that could really grind your organization to a halt or-

Karen Tynan: Right. Every threat.

Robert Rodriguez: Yeah, every threat. And it doesn’t seem like a value-add to the company at that time. Now, with fatalities, with a shooting, with a murder, that’s probably where you want to do this under a privilege and make sure that the information and the reports or whatever’s generated in this investigation is only being distributed to those on a need-to-know basis.

Karen Tynan: I like that. I think how companies are handling investigations when we talk about documentation, that’s got to be a priority for having a robust process that is defensible, that we can be confident that it will stand up to scrutiny. And I do like to see consistency in investigations, incident reporting, as far as the documents. For example, I think it’s a good practice to have the same investigation forms or audit documents that are consistent across different areas versus someone wrote something on the spiral notebook and tore it out and just freehanded. Having effective forms and documentation that can show how incident reporting is being handled, how investigations are being handled, how any audit of your system is being handled, I think are critical. And how are you documenting any anonymous reporting? How are you documenting the calls to a 1-800 number? I think those are areas where employers can look to make sure that they’re engaging in the best processes and looking for improvements.

Robert Rodriguez: Yeah, I like that.

Karen Tynan: So, lastly, in this podcast, I want to ask you about stress testing a workplace violence prevention plan. Now, this is kind of a sophisticated question that employers ask, but they’ll say, “Oh, should we run a tabletop? What kind of drills? What kind of reviews after an activity could give us some meaningful feedback?” So, give us a couple of minutes worth, Robert, on what you see any value in on those type of activities.

Robert Rodriguez: Yeah, I see a lot of value in them. Obviously, different size organizations have to allocate resources according to their size and how many resources they have. But a number of clients I’ve worked with employ these strategies, these tabletop exercises where you actually run through, okay, what are we going to do if we have a catastrophic event at our work site, whether it be a fatality, a workplace shooting, a murder, and not only at the local level, but what is the C-suite going to do? What is the PR team potentially going to be activated? And so, really stress testing in real time, conducting these like, “Okay, this event happened here. We’ve got all the stakeholders. We’re actually doing a mock meeting about this.” And I was surprised, a couple of my clients had told me that some of their insurance carriers will actually pay for these tabletop exercises too.

Karen Tynan: Great.

Robert Rodriguez: Yeah, which is a great resource for that. That’s really a great strategy to make sure that your plan is stress-tested. And that can include also drills and simulations where we’ve got an active-shooter drill or a shelter-in-place drill, an evacuation drill and making sure that if we have different alarms where, whether it be a fire alarm or an active-shooter alarm, that your employees know what to do there. And so, that if and when it does happen, people know what to do. For example, I had a workplace shooting where an employee pulled the fire alarm because he really is like, I just didn’t know what to do. And I thought that was the appropriate response to do. And so, it’s one of those things where we want to make sure that we are training our employees when it’s appropriate to pull the fire alarm, potentially when it’s not appropriate to pull the fire alarm.

Karen Tynan: Well, you mentioned communication. For those in construction, I know we had one client, Robert, that has employees across a very large construction site, and that’s typical for them. And so, they have a particular one of those air horns. I think you can even buy them at our favorite home improvement store. Those, I won’t say it, but it’s where my husband spends a lot of time, and they have those in the work buckets. And so, that’s their signal is that particular air horn is not used for anything else. It doesn’t signal lunchtime, break time, anything else. It signals workplace violence, shelter in place, and they utilize those horns in drills and in their training, and that’s the method they’ve come up with as an economical method, but something that can be universally heard across a large construction site.

Robert Rodriguez: That’s a great example because I think a lot of times, employers think that maybe you have to have this sophisticated, expensive system, whereas this is nothing more than the cost of the air horn at the home improvement store, and then, training your employees on what this air horn actually means. So, I think that that’s a great example. I think also stress testing is getting employee feedback. You mentioned surveys earlier, but if you have drills, getting employee feedback on, did this work? Do we have any recommendations from you? Is there something that we’re missing? I think that’s important to stress test your plan is to make sure where the rubber meets the road, you’re getting feedback from your employees.

Karen Tynan: I like that. And then, lastly, I’ve had quite a few folks ask about, oh, do we need to have a fancy third-party vendor to analyze incidents, or training, or to run these drills? And I’m, again, one of those attorneys who gives that favorite answer, it depends. Is there value there? There can be. It depends on the vendor, and it depends on what you’re trying to accomplish. So, I’m not a big no on that, but I’d like to see the resources used for the best return.

Robert Rodriguez: I agree with that 100%.

Karen Tynan: So, this was a pretty robust podcast. We appreciate you listening to Karen and Robert. Look for our blog articles on ogletree.com, our recorded webinars, our post on LinkedIn, and of course our workplace violence prevention practice page on ogletree.com. Take care and stay safe.

Robert Rodriguez: Thanks, everyone.

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